Wednesday, January 09, 2013

The US Supreme Court has consistently refused to address whether convicting an innocent person violates their due process rights, and in a high-profile Texas case has again refused to confront the question. Rosa Jimenez was convicted of murdering a child under her car by stuffing towels down his throat, a charge for which virtually all the convicting evidence came from expert witnesses. Jimenez was granted her own expert but, as the Austin Chronicle's Jordan Smith put it, he "had a meltdown on the stand and cursed at prosecutors in
the hallway – a tongue lashing used to discredit him on the stand." In her latest appeal, wrote Smith:

While then-Judge Charlie Baird ruled that Jimenez should be granted a new trial, the Court of Criminal Appeals subsequently rejected his findings, made from a multi-day evidentiary hearing with live witnesses in his court, and ruled instead
not only that Jimenez was not entitled to as many experts as the state,
but also that evidence of Jimenez's innocence was not "clear and
convincing," the standard by which the CCA ruled that she should be
judged.

Whether that is the proper standard for considering whether the
evidence points to Jimenez's innocence was among the questions before
the U.S. Supreme Court in a certiorari petition filed on Jimenez's
behalf this summer. Both the Mexican government, a group of
distinguished legal scholars from across the country (including UT's own
Jordan Steiker), and Dallas County District Attorney Craig Watkins were among those filing briefs with the Supremes urging them to take the case. To the Dallas D.A.,
the case was a perfect vehicle to determine what standard should apply
in determining a defendant's free-standing claim of actual innocence –
that is, a where a claim of innocence stands alone, without being tied
to a Constitutional claim or other procedural defect – and to decide
whether a preponderance of evidence, clear and convincing evidence, or
some other standard altogether should be used to evaluate such claims.

The Travis County D.A.'s office opposed the move, arguing that
Jimenez's case was not (at least at present) the vehicle by which any
consideration of free-standing actual innocence claims should be
decided.

The Supremes rejected the case yesterday, without written order,
kicking the matter back to the federal district court for further
proceedings that will address the issues raised before the high court.

Their refusal is disappointing, but hardly surprising. In Herrera v. Collinsand other cases, SCOTUS has refused to recognize a “claim [of actual innocence] as a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” In Herrera, SCOTUS declared that, "the traditional remedy for claims of innocence ... has been executive clemency," which in modern times has become a sad joke for all but the most trivial, long-ago cases.

I for one would like someone with a legal background to clarify what it means when SCOTUS kicks an appeal back to a lower court for consideration. To my mind, that isn't an outright rejection of the appeal.

The problem with cases like this is the failure of the TX Criminal Defense Bar to create a central data base on State Experts, like the TX District & County Attorney Association does on defense experts, or to study the Court of Criminal Appeals Rulings.

I don't believe CCA has ever over-turned a conviction on an innocence claim alone, unless the prosecutor's office agreed with the defense.(ie. Anthony Graves and Dallas CO. DNA cases) The CCA over turned the Brandy Briggs conviction in 2005, not on the actual innocence claim, but on the in-effective assistance counsel claim.

Had the attorneys for Rosa Jimenez also argued ineffective assistance of counsel for the failure to object to the State's experts personal opinions, failure to objected to the introduction of the after-the-fact autopsy report performed by a discredited ME, failure to hire a choking expert and lastly, violation of the confrontation clause for not producing the ME who performed the autopsy and declared the death a homicide.

Had they done this, then the CCA & U.S. Supreme Court would have had another issue to address than the actual innocence claim alone.

Fair disclosure...I provided documents to the appeals attorney in this case.

David, I agree that ineffective assistance claims (like Brady claims) are far more likely to receive relief than "actual innocence," which the TX courts are loathe to acknowledge and SCOTUS won't countenance at all.

It's also true that the prosecutors have a more coherent, consistent approach than defense attorneys, in part because they have an institutional presence whereas most defense lawyers are solos or at least not part of a public defender office, which IMO is why they don't have as well developed a system for vetting experts, etc.. That's not excuse making - TCDLA probably should do more - I just think it's the underlying reason.

(Part 1) Hey Grits, thanks for covering this (loophole-joke), sadly most folks would assume 'it' was on the falsely accused and subsequently wrongfully convicted human(s) and has nothing to do with taxpayers' & voters’.

Folks, take it from me, forget what you’ve been told regarding the” leading cause of wrongful conviction(s)”. There’s no way in hell its Mistaken / False Identity and / or Fire Ants, for these examples are simply excuses aka: ‘Failures’’ on behalf of those the Law allows to Occupy the Defense Table(s). When the legal industry itself and the Law allows for the systematic refusal to perform basic INVESTIGATION(S) prior to filing multiple ‘Ready for Trial’ notices in conjunction with allowing the uncertified to ‘Dabble’ is allowed to be watered down to “Ineffective Assistance of Counsel”, we get what we the friggin people allowed.

With that, I call upon those that claim to be one (CDL), (especially the 'Dabblers') to refrain from; consulting with any & all Misdemeanor and / or Felony clients'. Instead, immediately refer out to qualified defense council (specifically, Board Certified Criminal Defense Attorneys / Lawyers. Others are free to parrot the call to action, while the rest can get back to the sand pile. Thanks.

(Part 2) *Anyone considering consulting with an attorney / lawyer regarding a (Criminal Matter) in the Houston area can begin their endeavor by contacting Mr. Mark Bennett of - Bennett & Bennett (Board Certified) and 'NOT' a 'Dabbler'. If he can't assist you, he'll point you in the correct direction.

Shame on the TCDLA for creating a FAKE-ASS Oath & Creed in which little if any can recite and / or ever adhere to. Shame on them for creating a PLEA & FLEE Industry and shame on the attorneys' / lawyers that have no problem with it. Same on the MoFos’ that the sit on SCOTUS for they’ve just proven that they are useless and are no longer needed. The camel’s back is about to burst wide open and it won't be pretty, for there is only so much the Real citizenry will stand for.

"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Conroe

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"

- Rob Patterson, The Austin Post"Scott Henson's 'Grits for Breakfast' is one of the most insightful blogs on criminal justice issues in Texas."

- Texas Public Policy Foundation

"Nobody does it better or works harder getting it right"

David Jennings, aka "Big Jolly"

"I appreciate the fact that you obviously try to see both sides of an issue, regardless of which side you end up supporting."

Kim Vickers,Texas Commission on Law Enforcement Officer Standards and EducationGrits for Breakfast "has probably broken more criminal justice stories than any TX reporter, but stays under the radar. Fascinating guy."

Maurice Chammah,The Marshall Project"unrestrained and uneducated"

John Bradley,Former Williamson County District Attorney, now former Attorney General of Palau

"our favorite blog"

- Texas District and County Attorneys Association Twitter feed"Scott Henson ... writes his terrific blog Grits for Breakfast from an outhouse in Texas."